Abdul Rahim Rather vs State of J&K and Others

Petitioner, Abdul Rahim Rather is the father of detenue Abdul Ahad Rather who has challenged the detention of his son, the detenue, through

the medium of this petition, the petition is grounded on the facts that the security forces during the crackdown, without any cause or reason,

apprehended the detenue on 22.09.1993 and since then is continuing in the unlawful detention. Later on, he was detained formally under the

provisions of J&K Public safety Act, 1978 by respondent No.2 vide detention order No.14 of 1994 dated 14.03.1994 which order, according to

the petitioner, was neither served nor communicated to the detenue in the manner as prescribed by law. However, the petitioner has been able to

obtain a copy of letter No. DMB/ PSA/1692 dated 18.03.1994 addressed by District Magistrate, Baramulla to the father of the detenue which

shows that the detenue has been detained by respondent No.2 under the provision of J&K PSA. A copy of the said letter is on the record as

annexure P1. Pleas taken in the petition are that the detenue has not been served with any detention order, grounds of detention and the material

relied upon for detaining the detenue has not been provided to the detenue at all, which precluded him to make an effective representation; that the

detenue was not informed that he could make a representation against his detention to the Government; that the detention case of the detenue has

not been referred to the Advisory Board within the stipulated time, nor the detention order was confirmed by the Government within the period

prescribed by law. A copy of the grounds of detention has been obtained by the petitioner unofficially. These are vague, irrelevant and have never

been read over or explained to the detenue in the language he understand; viz., Kashmiri, that the detenue had never applied for bail, So the orders

of detention is not sustainable. Lastly, the plea has been taken that the impugned order of detention has mechanically been passed without

application of mind. As such the same is liable to be quashed.

Interim orders on the file reveal that sufficient time has been given to the other side to file the counteraffidavit, but that has not been filed by the

respondents. On 27091994 last and final opportunity was given in this behalf to the respondents, but of no avail and the case was ordered to be

listed for hearing.

Heard learned counsel for parties at length and have given my thoughtful consideration to arguments advanced in this behalf. Notwithstanding the

case is based on facts and those facts have not been controverted by the outside, nevertheless an important point of law has been raised by the

counsel for petitioner regarding application of mind before passing the impugned orders. My attention has been drawn to the communication No.

DMB/PSA/ 1692 dated 18.03.1994 written by District Magistrate, Baramulla, respondent No.2 to the petitioner who is the father of the detenue

which reads as under: j

Office of the District Magistrate, Baramulla

To

Shri Ad. Ahad Rather

F/o Ab. Rahim rather @ Tahir

R/o Margipora, Pattan.

No DMA/PSA/1692 Dated

18.03.1994

This is to inform you that your son has been detained vide order No. 14 of 1994 dated 11.03.1994 made under section 8 of the Jammu and

Kashmir public Safety Act, 1978 and has been ordered to be lodged in Central Jail, Srinagar.

You make a representation to the Government against the said order if you so desire. The grounds of the detention have been communicated to

the detenue through the Superintendent, Central Jail, Srinagar.

Sd/ 17/03/1994

District Magistrate Baramulla.

Copy forwarded to the :

Addl. Chief secretary (Home) J&K, Srinagar for information.

This letter reveals that the detenue has been detained on 14/03/1994 vide Order No. 14 of 1994 and has been lodged at Central Jail, Srinagar.

This fact has not been controverted by the other side and even in the arguments LC for the respondents has not rebutted this fact that the detenue

has been detained on 14/03/1994. My attention subsequently was drawn to the grounds of detention, a photo copy whereof as been placed on

record as annexure P2. It is obvious from the grounds of detention that the same have been prepared on 17031994. Learned counsel for the

petitioner has raised a plea that these grounds of detention were nonest at the time of detaining the detenue. According to him respondent No.2,

Who has passed the orders of detention which is assailed here, has not applied his mind nor he had any material before him for such application.

He has argued that the order of detention has been passed without application of mind because after three days of the order of detention grounds

have been prepared and formulated. Annexure P2, grounds of detention, as a matter of fact, has not been controverted by the order side, as I

have earlier observed that no counter affidavit was filed by the respondents refuting the facts alleged in annexures P1and P2. So the copy of the

grounds of detention which on record is taken to be an admitted fact. The simple point involved is whether application of mind has been made in

this case before passing the order of detention. I see force in the argument of LC for the petitioner that the order of detention has been made in this

case on 14031994 in a mechanical manner and without being satisfied on the basis of material, while the grounds of detention have been

formulated on 17031994. It is evidently clear that the grounds of detention were not prepared at the time when the order of detention was made.

So the learned counsel for the petitioner is right in saying that there was no application of mind, as envisaged by Section 8 and Section 10(b) of

J&K PSA. The opening words of section 8 of J&K PSA are:

The Government may :

(a) If satisfied with respect to any person with a view to preventing him from acting in any manner prejudicial to :

Word ""satisfied"" has been used in section 10(b) of the Act also, and it is settled law that the said word means that the officer passing the order

must apply his mind. Application of mind can only be made by the detaining authority when there are grounds before such authority to which he will

apply his mind. Satisfaction of the Government or the detaining authority must be based on some grounds. There can be no satisfaction if there are

no grounds on which it is stated that the Government was satisfied are such as rational human being can consider connected in some manner with

the objects which were to be prevented from being attained, the question of satisfaction except on the ground of mala fides cannot be challenged in

a court. Article 22(5) of the Constitution of India postulates two rights: The first part of article 22(5) gives a right to detained person to be

furnished with the grounds on which the order has been made and that has to be done as soon as may be. The second right given to such person is

of being afforded the earliest opportunity of making a representation against the order. It is obivious that the grounds for making the orders as

mentioned above are the grounds on which the detaining authority was satisfied that it was necessary to make the order. These grounds therefore,

must be in existence when the order is made. Existence of grounds must not only be presumed, but it must be shown to have been in existence on

the date when the order is passed. It is on these grounds only that application of mind is made and the satisfaction of the authorities, but the

Constitutional provisions have guranteed that this satisfaction is made according to judicial norms and ethics. So the power are vested in Court to

guard the interest of individuals in the exercise of such powers. Same point was raised in Gujrat High Court reported as 1988 Gujrat LR page 29

where the court held that there the grounds of detention were recorded four days subsequent to the order of detention, the order was bad in law,

because the grounds of detention should be in existence when the order is passed. It is not only for purposes of assuming satisfaction by the

detaining authority that the grounds of detention should be in existence. Article 22(5) of the Constitution of India makes it clear that the grounds

should be communicated to the detained person as soon as possible. Preparation and formulation of grounds serve three purposes under law; First

that, the grounds must be in existence before passing the detention order so that the authorities concerned can apply their mind to there satisfaction

for making the detention order; Secondly, when the grounds are in existence they are to be served as soon as possible to the detenue, thirdly so

that the detenue can exercise the right guaranteed to him under Article 22(5) of Constitution of India as also by the provision of J&K public safety

ACT to make an effective representation. In case the grounds are not prepared, they are not served and the right vested in the detenue to make a

representation is frustrated and order of detention becomes null and void. Here in this case, it is candidly clear that the order of detention was

made on 14th March, 1994 and the grounds were prepared on 17th march, 1994. So the grounds on the date of passing the order were nonest.

For these reasons, therefore, the learned counsel for the petitioner has succeeded in making out his point.

For these reasons, therefore, it is held that respondent No.2 has not applied his mind nor has got himself satisfied with the circumstances and the

grounds on which he has made the order of detention. On this ground alone, therefore, the order of detention is quashed. Besides this, as I have

already mentioned in the judgement that the several other grounds were taken by the learned counsel for the petitioner. Though they , in view of the

above observations need not be dealt with in detail, yet I do not hesitate to say that all these pleas are factual and remain unrebutted on the file. It

has been mentioned that no order of detention was served on the detenue; the Government has not confirmed the order of detention; the detenue

was not asked to make a representation; detenue was not supplied the material to make an effective representation; the detention case of detenue

was not sent to the Advisory Board within the stipulated time etc. These have not been controverted by the other side and even LC for the

respondents could not spell out anything regarding these plea. So on these grounds also the detenue is entitled to be released and the order of

detention liable to be quashed. It is directed that the detenue be released from detention forthwith, in case he is not involved in any substantive

offence.

Before parting with the file, I may make a mention here that the authorities, while passing the orders of detention must to give the date on the

grounds of detention and generally I have seen that the grounds of detention are not being dated. Secondly, it has been observed that the orders of

detention are not being communicated to the detenues. It cannot be said with certainty whether these mistakes and irregularities are being

committed deliberately or these escapes from the attention of the authorities while passing such orders. The authorities concerned must honour the

provision of Articles 21 and 22 of the Constitution which guarantee right to life and personal libelity to the citizens of the country. Once there is a

bonafide exercise of power, I do not believe that the authorities will escape such important things which have the mandate of law both from the

Constitution and other laws made hereunder. In these circumstances, I think it appropriate to say to the Additional Chief Secretary, Home,

Government of Jammu and Kashmir to issue a circular to all the District Magistrates and detaining authorities to keep in view the following things

while passing the orders of detention :

1) Grounds of detention must be prepared and formulated prior to the date of order of detention so that application of mind to the satisfaction of

the detaining authority on these grounds;

2) Ground of detention must bear the date of preparation and formulation to show their existance on the date when the detention order is made;

and

3) orders of detention must be derved on the detenue and the date of service thereof shown separately.

Registrar is directed to send a copy of this Judgement to the Additional Chief Secretary, Home, J&K for implementation of the aforesaid

directions.